IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 14195 of 2000(M)
1. P.RAMACHANDRAN
... Petitioner
Vs
1. REGIONAL PROVIDENT FUND COMMISSIONER
... Respondent
For Petitioner :SRI.ARIKKAT VIJAYAN MENON
For Respondent :SRI.N.N.SUGUNAPALAN (SR.)
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :05/03/2009
O R D E R
S.SIRI JAGAN, J.
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O.P.No. 14195 of 2000
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Dated this the 5th day of March, 2009
J U D G M E N T
The proprietor of an establishment which was directed to be
covered under the Employees’ Provident Funds and Miscellaneous
Provisions Act, by the 1st respondent herein, is the petitioner herein.
The original petition proceeds on the basis that the coverage was on
the basis of clubbing of two separate establishments, viz., General
Engineering Company and Kiran Steel Industries, which are separate
SSI units; one owned by the husband and the other by the wife.
According to the petitioner, the coverage has been established by
clubbing these two establishments together. The counsel for the
petitioner took pains to satisfy me that these two establishments are
two separate SSI units having separate registration which are Exts.P1
and P2 and, as evidenced by Ext.P11 report of the Enforcement
Officer of the Provident Fund Organization, these two establishments
are distinct and separate. However, despite that fact, according to the
petitioner, the 1st respondent has clubbed the two establishments
together for the purpose of coverage under the Act and passed Ext.P12
order under Section 7A of the Act, which is under challenge before me.
2. The learned Standing Counsel for the Provident Fund
Organization points out that, by Ext.P12, coverage was not by clubbing
these two establishments together, but only separately, and the
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petitioner’s establishment alone has been covered under Ext.P12. It is
pointed out that in Ext.P12 itself it has been specifically stated that the
question of coverage of Kiran Steel Industries will be examined
separately after collecting details, which the proprietor has not
produced so far.
3. The contention of the petitioner is that without clubbing the
two establishments together, each of these establishments do not
employ the required number of employees for coverage.
4. I have considered the rival contentions in detail.
5. As I have stated first, the counsel for the petitioner took
pains to satisfy me that the coverage has been done clubbing these
two establishments together. On a reading of Ext.P12, it is abundantly
clear that the petitioner’s establishment has been directed to be
covered separately as an independent unit leaving the question of
coverage of Kiran Steel Industries under Section 2A of the Act to be
examined separately after collecting relevant details, which the
proprietor had not produced so far. As such, I need consider only the
question as to whether the coverage of the petitioner’s establishment,
namely, General Engineering Company, under the Act is sustainable or
not.
6. At the outset, I find from the order that the petitioner was
not at all co-operating with the proceedings under S.7A of the Act as is
clear from the following facts discernible from the impugned order.
o.p.14195/00 3
Despite a direction by the Area Enforcement Officer, the petitioner did
not produce the records of the establishment. The petitioner even
refused to accept coverage notice issued by the 1st respondent.
Therefore, it was served through the Area Enforcement Officer, which
was acknowledged on 20.12.1996. On receipt of the intimation, the
petitioner by letter dated 26.12.1996, disputed the coverage on the
ground that the General Engineering Company and Kiran Steel
Industries are separate units owned by separate persons with separate
SSI registrations and hence not coverable. Therefore, the 1st
respondent initiated proceedings under 7A(1) of the Act for deciding
the question of coverage. First hearing of the proceedings was fixed on
20.2.1997. Although the petitioner acknowledged the summons, none
appeared in the enquiry and the enquiry was adjourned to 19.3.1997.
The petitioner did not seek any adjournment also. The enquiry was
again adjourned to 13.5.1997. The adjournment notice was served
through the Area Enforcement Officer and the petitioner acknowledged
receipt of the summons on 29.4.1997. None appeared on that day also
and the enquiry was again adjourned to 10.11.1997. The petitioner
acknowledged the summons on 20.10.1997. The petitioner appeared
on 10.11.1997 again contending that the petitioner’s company has no
relation with the Kiran Steel Industries. As per the request of the
petitioner, a squad of two Area Enforcement Officers was deputed to
inspect the petitioner’s establishment. The squad reported that both
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the establishments are under the same management and that
workers working in both units as also ministerial staff are also the
same. Further enquiry on the basis of the report of the Area
Enforcement Officer was fixed on 7.4.1998 and summons were issued
to the petitioner and to the proprietrix of Kiran Steel Industries. The
summons were returned. Thereafter, enquiry was adjourned to
14.5.1998. Despite receipt of summons, none appeared on 14.5.1998
and the enquiry was adjourned to 25.6.1998 and the summons were
again served through the Area Enforcement Officer and
acknowledgements were obtained. On 25.6.1998 nobody appeared.
As a last chance, one more opportunity was granted and enquiry was
adjourned to 14.7.1998. Summons addressed to the proprietrix of
Kiran Steel Industries was returned stating with the postal remarks
“husband’s name differs and hence refused”. Although the petitioner
was supplied with a communication dated 25.2.1999 enclosing the
copies of the reports of the Enforcement Officer dated 30.9.1996 and
23.2.1998 calling for his objections thereof, he did not file any
objection, despite serving notice through Area Enforcement Officer on
26.2.1999. When the establishment was again visited by the Area
Enforcement Officers on 1.6.1999, the records were not available in
the factory premises. Although the petitioner was directed to produce
the records on 16.6.1999 he did not respond. Again, when a squad of
Area Enforcement Officers visited the establishment on 22.12.1999, no
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responsible person was available in the premises of the petitioner’s
establishment. The squad verified the available records in the factory
premises. These records were for the current period only. The person
available in the office was directed to inform the proprietor to produce
the records on 23.12.1999. On 27.12.1999 the petitioner turned up
without the relevant records. On 3.1.2000 he produced certain records
such as cash book, Income Tax returns etc. in respect of the General
Engineering Company and Kiran Steel Industries, which did not
disclose the date of set up, employment strength etc. of the two
establishments. It is under the above circumstances, the 1st
respondent issued Ext.P12 order on the basis of the records available,
thus;
“On the basis of the declaration in form 2 submitted by the
Employer to the Factories Inspector on 6.9.91 there were 20 employees
during June 1991. In the declaration in form 2 submitted by
Sri.P.Ramachandran dated 23.10.91 for renewal of licence for the year
1992, it is stated that for the preceding 12 months 20 employees were
regularly engaged (col.5 (iii). The establishment has started functioning
during 1979. Admittedly, there were 20 employees during June 91 and
hence the coverage of General Engineering Company is finalised with
effect from 30.6.91. The question of coverage of Kiran Steel Industries
under section 2(A) of the Act will be examined separately after collecting
the relevant details which the Proprietor has not produced so far.
O R D E R
In the light of the above findings I consider that there is absolutely
no ground for disputing coverage and the coverage of the establishment
is perfectly in order. The establishment is statutorily bound to extend the
benefits under the Employees Provident Fund and other schemes to its
employers (sic) from 30.6.91.”
7. It is this order the petitioner challenges in this original
petition. The counsel for the petitioner took pains to argue that the
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declaration submitted by them in form no. 2 was only an approximate
number which does not represent actual strength and the same was
only 15. I am not able to accept that contention. Form 2 declaration is
a statutory declaration. The petitioner cannot disown the same. Even
otherwise, the petitioner had been given more than sufficient
opportunities to prove otherwise by producing appropriate records.
The petitioner has not chosen to do so. That being so, there is
absolutely nothing wrong in the 1st respondent deciding the matter on
the basis of the records available to him. The records available to him
are sufficient to hold that the petitioner’s establishment independently
employs 20 or more employees during 1991, which has been declared
by the petitioner by filing declaration in Form 2 before the Factories
Inspector for the purpose of obtaining factory licence and getting the
same renewed. In the above circumstances, I do not find anything
wrong with the impugned order. Accordingly, this original petition is
dismissed.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
S.SIRI JAGAN, J.
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O.P.No. 14195 of 2000-M
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J U D G M E N T
5th March, 2009